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Workplace disputes and alternative dispute resolution

On Thursday I participated in a lively seminar at the Western Institute for Social Research in Berkeley, CA, titled “Conflict vs. Abuse: What Should Be Mediated?” Here’s the seminar description:

This seminar . . . examines the types of differences and disputes that may be appropriate for mediation vs. those that are not. In particular, it raises the question: What are the distinctions between “ordinary” conflict, which may include incivility, disrespectful acts and statements, and expressions of anger, and situations that have become abusive, such as targeted harassment, bullying, and physically threatening or harmful behavior? We will examine these situations as they arise in family situations, workplaces, and communities.

Seminar participants included a terrific group of WISR learners, faculty, and friends, including co-conveners Larry Loebig (mediator, coach, and Internet entrepreneur) and John Bilorusky (co-founder and president of WISR). It was sponsored by WISR’s Mediators Beyond Borders chapter.

The discussion covered not only mediation, but also arbitration, restorative justice, and topics to alternative dispute resolution (ADR).

My take

I shared with the group my ongoing concerns about using mediation to address severe workplace bullying and similar forms of targeted mistreatment at work. As I see it, serious disagreements, various instances of incivility and disrespect, and other forms of conflict at work are ripe for mediation. In some instances, lesser forms of discrimination and sexual harassment may be appropriate candidates as well.

But genuine workplace bullying and severe sexual harassment are forms of abuse, and for many reasons, abuse is not easily “mediated.”

This is especially so when a party to a dispute presents narcissistic, sociopathic, or psychopathic tendencies, typically involving frightened target vs. a smart, smooth, manipulative abuser. In the workplace context, it may involve an employee (“emotional,” “delusional,” “overreacting”) dealing with a psychologically abusive supervisor (“hey, we had a great time playing golf,” “seems like an okay guy”).

Thus, I think we have to be very cautious about how we incorporate mediation and restorative justice approaches into workplace dispute resolution. But moving cautiously does not mean staying put. The current litigation model of resolving workplace disputes is broken, at least outside of the collective bargaining framework. Consequently, ADR merits serious consideration and, when appropriate, careful implementation.

Professor Susan Duncan’s article

Toward that end, law professor Susan Duncan (University of Louisville) has posted a thought provoking article, “Workplace Bullying and the Role Restorative Practices Can Play in Preventing and Addressing the Problem.” Here’s a snippet from her abstract:

This article documents the prevalence of workplace bullying and the human and capital costs of such behavior. The article then briefly describes the concept of restorative practices and analyzes the benefits and opportunities the approach would have in the context of workplace bullying. The final section of the article explores potential roadblocks to implementing restorative practices in the workplace and concludes by offering concrete ideas on future steps companies and policymakers should take to implement restorative practices.

You can read Prof. Duncan’s full abstract and download her article without charge, here.

Part of the toolkit

In sum, mediation and ADR generally should be pieces of our toolkit for resolving workplace conflict and mistreatment. But we always should be aware of their potential to reinforce the original mistreatment and abuse under the guise of seemingly more peaceful, less confrontational methods.